Unpublished Disposition, 861 F.2d 268 (9th Cir. 1988)

MEMORANDUM^* 

This is an action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 (1982), which provides a remedy for railroad employees injured by the negligence of their employer. The incident giving rise to plaintiff's injuries was an intentional assault on her by a fellow employee with whom she had had a lengthy and stormy personal relationship.

An employer is generally not liable to employees for injuries arising out of intentional assaults. However, we recognize two exceptions:

Despite FELA's explicit reference only to negligence, the courts have found that two theories of liability exist in FELA cases involving intentional assaults by one employee upon another: respondeat superior and direct negligence. Under the theory of respondeat superior, an employer is liable for the intentional assaults committed by its employee in furtherance of the employer's business. Under the theory of direct negligence, an employer is liable if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct.

Taylor v. Burlington N. R.R., 787 F.2d 1309, 1314-15 (9th Cir. 1986) (citations omitted). Plaintiff Linn is suing under both of these theories.

The district court granted summary judgment for the railroad, and plaintiff appeals, arguing that there is sufficient material in the record to create a genuine issue of material fact under both theories. We review a grant of summary judgment de novo. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). We affirm the district court with respect to the theory of respondeat superior but reverse on the issue of direct negligence.

The critical issue in deciding whether summary judgment was appropriate on plaintiff's respondeat superior theory is whether the aggressor employee, Valdario, was acting in order to further the interest of the employer. We find nothing in this record that could convince a rational fact finder to answer that question in the affirmative.

Valdario, a locomotive mover, came up into a locomotive cab after an emergency stop. Finding Linn unable to recover pneumatic pressure in the braking system after the stop and perhaps about to leave the cab, he pushed her back into the seat and said, "You're not going anywhere. You recover it, bitch." He then physically attacked her. This does not suggest that Valdario was trying to encourage or assist Linn in doing her job.

This case is unlike Jamison v. Encarnacion, 281 U.S. 635, 638 (1930), where a supervisor used excessive force against an employee to "hurry him about the work." It is also unlike Taylor, where the aggressor testified that he harassed the plaintiff to force the plaintiff to perform his job properly. See 787 F.2d at 1315. In Jester v. Southern Ry., 204 S.C. 395, 29 S.E.2d 768, 773, cert. denied, 323 U.S. 716 (1944), a railroad engineer shot his fireman to stop him from pulling a water lever in contravention of orders. In all these cases, there was a showing that the aggressor perceived force to be appropriate and necessary in carrying out the work task. No such evidence exists here.

The record indisputably shows that Valdario had a history of irrational behavior toward Linn stemming from their personal relationship. The facts asserted by plaintiff here do demonstrate that the incident provoking the assault occurred in the course and scope of the plaintiff's employment. However, they fail to show intent on the part of her assailant to further the employer's interests.

Regarding direct negligence, the question is essentially whether any evidence shows the railroad was put on notice of the reasonable foreseeability of an assault by Valdario on Linn. The railroad asserts that none of its employees were ever advised of any possible violence aimed specifically at Linn, only of Valdario's irrational or strange behavior. However, the railroad is mistaken in this assertion. The record does contain plaintiff's deposition testimony that she expressly told her foreman she thought Valdario would attack her. She additionally related to her foreman various episodes of Valdario's irrational behavior directed toward her.

Q: Did you tell [the foreman] that you thought Mr. Valdario would physically attack you?

A: Yes.

Q: When did you tell him that?

A: The [day before the attack], when I told him about [Valdario's] radical moves and the speed that he was running at.

In light of this passage, summary judgment on the issue of reasonable foreseeability by the railroad was error.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Each side is to bear its own costs.